tdiu Smc S Question At Svr Tomorrow?

[Berta]

I am assuming Carrie Weletz will be our SVR guest tomorrow and as a great Vet lawyer, she could help with this question---

but do I have the question right?

When a vet receives TDIU solely based on one SC disability or gets 100% solely on one SC disability, then is VA allowed to combine any 'separate additional independent disabilities' with VA math

or

are they supposed to use traditional math to add up the disabiliities that would warrant a SMC S award if they are denied on HB award under "S":?

Does that make sense?

Edited March 13, 2012 by Berta

[Philip Rogers]

I would ask "can (or does) the VA use the combined ratings table when considering an SMC "s" award (ie: 100+60), for a claimant who is either 100% schedular or TDIU for a single disability??" And if so, doesn't this wrongfully penalize the claimant by considering them a "whole person" again, rather than a person who has zero residual capability left, from their 100% or TDIU disability??

pr

I am assuming Carrie Weletz will be our SVR guest tomorrow and as a great Vet lawyer, she could help with this question---

but do I have the question right?

When a vet receives TDIU solely based on one SC disability or gets 100% solely on one SC disability, then is VA allowed to combine any 'separate additional independent disabilities' with VA math

or

are they supposed to use traditional math to add up the disabiliities that would warrant a SMC S award if they are denied on HB award under "S":?

Does that make sense?

Edited March 13, 2012 by Philip Rogers

[Berta]

Philip-I brought your question up at SVR last night to Carrie Weletz from Bergmann and Moore

and she agreed that VA uses the “combined” rating tables for the SMC S awards but seemed very interested in the question,although they don't handle many SMC issues.

She said she would try to find any VA case law on this issue, perhaps if it has been challenged before, or specifically what the 'cannon of tenets' (VA's legal rationale for the S regs) is,

and would let us know when she returns to SVR.

The discussion on this is about 18 minutes into the archived show here.

http://www.svr-radio.com/archives.html

I couldn't find anything at CAVC but if this issue had been altered ,by any precedent setting decision,I think we all would know it by now-

BUT, it is because veterans like Bradley, Washington, Mucinsak, Myler, and widows like Beverly Nehmer, who, with good representation, pushed their issues to the court, which ultimately established new regulations that were favorable to veterans.

I feel this is worth pursuing because ,I read the way you had supported your argument , in the last post and this -to me- is a viable way of looking at how,in fact, this does penalize veterans.

Many veterans, who might have hesitated to make CAVC filings,at first , have made a positive impact on us all.

This recent case is a good example:

DeLisio v. Shinseki, 25 Vet.App. 45 (2011) “(DeLisio holds that secondary disabilities (i.e., disabilities which are caused by the underlying disability for which a veteran has filed a claim for benefits) sometimes may be encompassed in the underlying claim, even though a separate claim has not been filed for the secondary disabilities.

The Court decided that if the VA obtains information suggesting a causal relationship between the underlying and secondary disabilities prior to adjudicating the underlying claim, the secondary disability is deemed reasonably encompassed in the underlying claim).”

(source of analysis :

From:http://www.veteranslaw.com/content/law-update March 2012

The Veterans Law Group in California)

I think this is a biggy but it received little attention on the net yet.It is saying VA should consider secondarys, even if not raised by the veteran formally if they are “deemed reasonably encompassed”

in the actual claim the veteran filed.

Of course getting VA to deem anything that way could be a struggle and also it assumes the VA would even be able torecognize obvious secondarys.

I am anxious to learn more about DeLisio as soon as I have time

but in any event, I feel you should appeal to the CAVC as you raised a very valid reason why the S regs penalize the veteran.

You could get a filing fee waiver I am sure.And once sonething gets docketed at the CAVC, vet lawyers will probably contact you to get more info on what you filed.

The CAVC site has all the info as to how to file the NOA ,and there is a deadline.

[Philip Rogers]

Thanks, Berta!! I wasn't able to hear it live but was able to hear it about 0100 hrs this morning. I'll be contacting them later today.

pr

[Philip Rogers]

Berta - I was disappointed in her response. She stated "they don't" involve themselves in SMC claims but stated they do in HB claims. Anyway, I wasn't able to contact them, due to me being busy w/my "tornado bunker" build but will tomorrow. I plan to fax my decision, w/my appeal statement, tomorrow. I plan to go to the court but given my age and health could consider an offer to settle. Much as I'd like to, I need to think of me and mine! jmo

pr

[carlie]

I plan to go to the court but given my age and health could consider an offer to settle. Much as I'd like to, I need to think of me and mine! jmo

pr

pr,

I'm with you 100 percent on the above.

I find it of most importance to make wise choices, in the battles I take on these days.

Many of these battles age us tremendously both physically and mentally.

Some aren't worth it - to me.